State v. Million

• Decision Date: 27 July 1978
• Docket Number: No. 4138,4138
• Citation: 583 P.2d 897,120 Ariz. 10
• Parties: The STATE of Arizona, Appellee, v. Dennis Lynn MILLION, Appellant.
• Court: Arizona Supreme Court

Page 897

583 P.2d 897

120 Ariz. 10

The STATE of Arizona, Appellee, v. Dennis Lynn MILLION, Appellant.

No. 4138.

Supreme Court of Arizona, In Banc.

July 27, 1978.

Bruce E. Babbitt, Former Atty. Gen., John A. LaSota, Jr., Atty. Gen. by William J. Schafer, III, and Georgia B. Ellexson, Asst. Attys. Gen., Phoenix, for appellee.

Paul Hunter, Yuma, Risner, Raven & Keller by Peter B. Keller, Tucson, for appellant.

CAMERON, Chief Justice.

This is an appeal from a judgment, following a jury trial, of guilt for the crime of transporting marijuana, A.R.S. § 36-1002.07, and a sentence of from five years to five years and one day in the state prison.

We take jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.

We are asked to decide three issues:

1. Was defendant denied his rights to a speedy trial under Rule 8.2, Arizona Rules of Criminal Procedure, 17 A.R.S., or the Sixth Amendment to the United States Constitution?

2. Was the warrantless search of defendant's motor home vehicle based on probable cause and justified by exigent circumstances?

3. Did the defendant establish entrapment as a matter of law?

The facts necessary for a determination of these issues are as follows. Pursuant to an informant's tip that a certain house in Yuma, Arizona, was being used as a "stash house" for drug smuggling purposes, agents of the Federal Drug Enforcement Agency (DEA) began periodic surveillance of the house in the early part of May 1975. At approximately 1:00 p. m. on 12 May 1975, a DEA agent observed at the residence a tan motor home meeting the description of a vehicle reportedly used in drug trafficking operations. At approximately 11:00 p. m. that evening, the motor home was again seen at the house, backed into the carport. The carport area was well-lit and a light was shining within the vehicle. Using binoculars, two surveilling officers observed the defendant and two other suspects carrying dark-colored garbage bags and packing them in various compartments within the vehicle. Officer Martinez testified at the suppression hearing:

"Q What type of garbage bag you have used the word garbage bag, what type of garbage bags were they you observed at first?

"A They were dark large type that you would put in an outside garbage can, dark green or black. They appeared very dark.

"Q Did they appear to be empty or full?

"A No, sir, they appeared to be containing various objects in them that were that they would bend when they would carry them. The garbage bags would bend and loose objects inside them could be observed.

"Q How would you describe these objects you saw in the bags?

"A Well, they are individual objects, not large. I would describe them as from prior experiences, as brick shaped objects.

"Q Have you seen these types of garbage bags on prior occasions?

"A Yes, sir.

"Q How many prior occasions?

"A A hundred or 150 times.

"Q Have those been in connection with investigations of marijuana?

"A Yes, sir.

"Q Is there anything unusual, anything common about the garbage bags, put it that way?

"A In this area it is most common to find garbage bags of this type to contain marijuana contraband. They are available everywhere.

"Q Is there some reason why garbage bags are used instead of cardboard boxes?

"A One thing, they contain the smell better. Second, they are waterproof. They are able to pack them in different configurations very readily by pushing and shoving them into different locations in the compartment. They put talcum on them to deaden the odor."

After the motor home was loaded, it was boarded by two of the suspects and driven to the Jet Cafe where it was parked. A Volkswagen driven by a third suspect followed the motor home to the Jet Cafe. All three suspects then rode in the Volkswagen to another residence where they remained for approximately one hour. They then returned to the cafe, spent a few minutes inside and then entered the motor home. The motor home was driven north toward the California border. Just before reaching the border, at approximately 1:15 a. m., the motor home was stopped by several officers representing the DEA, the Department of Justice, and the Yuma City-County Narcotics Task Force. A search of the vehicle revealed kilo packages of marijuana totalling 1,238 pounds. The contraband was seized and the defendant and the other two occupants of the vehicle arrested.

Defendant was indicted on charges of transporting marijuana and possessing marijuana for sale on 15 May 1975, case number 7783. The defendant was granted two pretrial continuances and on 2 September 1975 the defendant's motion to suppress the use of evidence obtained as a result of the search of the motor home was granted by the trial court. On 9 September 1975, immediately prior to the time set for trial, the State filed a notice of appeal and the trial court, on the State's motion over the objection of the defendant, dismissed the case without prejudice.

On 23 September 1976, the Court of Appeals issued an opinion reversing the trial court's suppression order. See State v. Million, 27 Ariz.App. 490, 556 P.2d 338 (1976). In a motion for rehearing, the trial court's previous dismissal of the case without prejudice was pointed out to the Court of Appeals. The Court of Appeals thereupon (on 3 November 1976), vacated its opinion, stating:

"On rehearing, appellants have pointed out to us, for the first time, by means of a motion to dismiss the appeal that the State after the granting of the motion to suppress made a motion to dismiss the case which was granted by the trial court. That being so, the issues are moot.

"The motion to dismiss is granted, the appeal is dismissed and the opinion previously made by this court is vacated." State v. Million, supra, 27 Ariz.App. at 494, 556 P.2d at 342.

15 days later, on 18 November 1976, a new indictment based on the original charges was filed against the defendant, case number 8557. The trial court reconsidered its order granting the defendant's motion to suppress in the earlier case. It found that

"good cause does exist to reconsider the order previously made granting defendant's motion to suppress, that cause being demonstrated by the opinion of the Court of Appeals rendered September 23, 1976."

and ordered the motion to suppress denied. On 8 March 1977, 110 days after the new indictment was filed, the defendant's trial was commenced at the conclusion of which the jury returned verdicts of guilty of transporting marijuana and possessing marijuana for sale.

Pursuant to state law prohibiting double punishment for the same acts, A.R.S. § 13-1641, the trial court vacated the guilty verdict for possessing marijuana for sale and sentenced the defendant on the transporting marijuana charge to from five years to five years and one day in the state prison. Defendant appeals from his conviction and sentence.

WERE DEFENDANT'S SPEEDY TRIAL RIGHTS VIOLATED?

The defendant contends that he was denied his rights to a speedy trial under Rule 8.2, Rules of Criminal Procedure, 17 A.R.S., and the Sixth Amendment to the United States Constitution.

Defendant was not in custody as a result of the second indictment and the applicable provision of Rule 8.2 reads as follows:

"c. Defendants Released from Custody. Every person released under Rule 7 shall be tried by the court having jurisdiction of the offense within 120 days from the date of his initial appearance before a magistrate on the complaint, indictment or information, or within 90 days from the date of his arraignment before the trial court, whichever is the greater." Rule 8.2(c), Rules of Criminal Procedure, as amended May 1975, effective 1 August 1975, 17 A.R.S.

Trial commenced within 120 days from the date of the new indictment. It is then apparent that as far as the time limits of the matter commenced by indictment on 18 November 1976, there is no violation of the speedy trial requirements of Rule 8.

Neither are we concerned with the provisions of paragraph (d) of Rule 8.2 which provides that a trial shall be commenced within 60 days after a reversal of judgment by an appellate court. There was no reversal of judgment by the appellate court and (d) of Rule 8.2 was not applicable.

The only delay we are concerned with and which the defendant urges as error was the 435 day lapse of time from the dismissal without prejudice to the filing of the new indictment on 18 November 1976.

The legislature, by statute, has given the State a right to appeal from a pretrial suppression order:

" § 13-1712. Appeal by state

"An appeal may be taken by the state from:

"7. An order granting a motion to suppress the use of evidence. As amended Laws 1969, Ch. 133, § 11."

We have upheld the constitutionality of that statute. State v. Lelevier, 116 Ariz. 37, 567 P.2d 783 (1977).

At the time of the granting of the motion to dismiss, the State had an option of going to trial without the suppressed evidence or allowing the case to be dismissed and appealing the ruling. The State evidently felt that going to trial was unacceptable because of the probability that there would be insufficient evidence to convict. In dismissing the matter, the State faced a risk that the defendant, who was released from custody at the time of the dismissal, might not be available or that witnesses would be unavailable. The running of the speedy trial requirements of Rule 8.2 was not one of these risks because during this time the trial court was without jurisdiction to proceed. We therefore find no Rule 8 violation. State v. Pogue, 113 Ariz. 478, 557 P.2d 163 (1976).

But defendant contends that the dismissal by the State was to avoid the provisions of Rule 8 and therefore was in violation of Rule 16.5, as amended, Rules of Criminal Procedure, 17 A.R.S., which reads:

"Rule 16.5 Dismissal of prosecution

"a. On Prosecutor's Motion. The court, on motion of the prosecutor showing good cause therefor, may order that a prosecution be dismissed at any time upon finding that...